United States v. Kriesel

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-30110

Plaintiff-Appellee,

v.  D.C. No.

CR-03-05258-RBL

THOMAS EDWARD KRIESEL, JR.,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

March 20, 2007—San Francisco, California

Filed November 29, 2007

Before: Betty B. Fletcher and M. Margaret McKeown,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge McKeown;

Dissent by Judge B. Fletcher

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation.

15299

15302 UNITED STATES v. KRIESEL

COUNSEL

Colin Fieman and Joanne Green, Federal Public Defenders,

Tacoma, Washington, for the appellant.

Helen J. Brunner, John McKay, and Mike Dion, United States

Attorneys, Seattle, Washington, for the appellee.

UNITED STATES v. KRIESEL 15303

OPINION

McKEOWN, Circuit Judge:

In 2004 we held that the DNA Analysis Backlog Elimina-

tion Act of 2000 “satisfies the requirements of the Fourth

Amendment” with respect to individuals on supervised

release. United States v. Kincade, 379 F.3d 813, 839 (9th Cir.

2004) (en banc). The 2000 Act required collection of DNA

samples from individuals in custody and on probation, parole,

or supervised release who had been convicted of “qualifying

Federal offenses,” then defined as certain violent crimes. 42

U.S.C. § 14135a (2000). Congress amended the Act in 2004

to expand the qualifying offenses to all felonies. Joining every

other circuit to consider the 2004 Act, we hold that the

amended statute passes constitutional muster with respect to

a convicted felon on supervised release.1

I. STATUTORY AND REGULATORY BACKGROUND

In 2000, Congress enacted the DNA Analysis Backlog

Elimination Act (the “DNA Act” or the “Act”), which

required DNA samples to be collected from individuals in

custody and those on probation, parole, or supervised release

after being convicted of “qualifying Federal offenses.” 42

U.S.C. § 14135a. The DNA Act originally defined “qualifying

Federal offenses” as the following: (A) murder, voluntary

manslaughter, or other offense relating to homicide, (B) an

offense relating to sexual abuse, to sexual exploitation or

other abuse of children, or to transportation for illegal sexual

activity, (C) an offense relating to peonage and slavery, (D)

kidnaping, (E) an offense involving robbery or burglary, (F)

1

In so doing, we acknowledge that in Kincade and elsewhere, much ink

has been spilled over this sensitive and contentious issue, and emphasize

that we confine our discussion to resolving the constitutionality of the

2004 amendment, as applied to individuals like Kriesel. Cf. 379 F.3d at

837-38.

15304 UNITED STATES v. KRIESEL

any violation of 18 U.S.C. § 1153 involving murder, man-

slaughter, kidnaping, maiming, a felony offense relating to

sexual abuse, incest, arson, burglary, or robbery, (G) any

attempt or conspiracy to commit any of the above offenses.

See DNA Analysis Backlog Elimination Act, Pub. L. No.

106-546, § 3, 114 Stat. 2726, 2729-30 (2000). In 2001, the

USA PATRIOT Act added to § 14135a “[a]ny offense listed

in section 2232b(g)(5)(B) of Title 18 [acts of terrorism tran-

scending national boundaries],” “[a]ny crime of violence (as

defined in section 16 of Title 18, United States Code),” and

“[a]ny attempt or conspiracy to commit any of the above

offenses” to the list of qualifying offenses. See Pub. L. No.

107-56, § 503, 115 Stat. 272, 364 (2001). Together, these

qualifying offenses are generally characterized as violent

crimes.

Congress passed the Justice for All Act in 2004, which fur-

ther amended the DNA Act by expanding the definition of

“qualifying Federal offenses” as follows:

(d) Qualifying Federal offenses

The offenses that shall be treated for purposes of this

section as qualifying Federal offenses are the follow-

ing offenses, as determined by the Attorney General:

(1) Any felony.

(2) Any offense under chapter 109A of Title 18

[sexual abuse crimes].

(3) Any crime of violence (as that term is defined

in section 16 of Title 18).2

2

18 U.S.C. § 16 defines “crime of violence” as “(a) an offense that has

as an element the use, attempted use, or threatened use of physical force

against the person or property of another, or (b) any other offense that is

a felony and that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used in the course

of committing the offense.” All crimes of violence, whether felonies or

misdemeanors, are covered by the statute and implementing regulation.

UNITED STATES v. KRIESEL 15305

(4) Any attempt or conspiracy to commit any of

the offenses in paragraphs (1) through (3).

Pub. L. No. 108-405, § 203(b), 118 Stat. 2260, 2270 (2004).3

Rather than specifying certain crimes, the amendment

included all felonies, all crimes of violence, and all sexual

abuse crimes under Chapter 109A of Title 18.

The Attorney General has authority to promulgate regula-

tions to carry out the statute. See 42 U.S.C. § 14135a(e); 28

C.F.R. § 28.2; DNA Sample Collection From Federal Offend-

ers Under the Justice for All Act of 2004, 70 Fed. Reg. 4,763-

01 (Jan. 31, 2005) (“DNA Sample Collection”). In response

to the 2004 changes, the Attorney General revised 28 C.F.R.

§ 28.2, the regulation that identifies qualifying federal

offenses for the purposes of DNA sample collection, to track

the new language of § 14135a(d).

As under the original DNA Act, probation offices collect

DNA samples from individuals on probation, parole, or super-

vised release who have been convicted of a qualifying federal

offense, 42 U.S.C. § 14135a(a)(2), and the samples are fur-

nished to the Director of the Federal Bureau of Investigation

(the “FBI”), “who . . . carr[ies] out a DNA analysis on each

such DNA sample and include[s] the results in CODIS,” id.

§ 14135a(b).4 CODIS is the FBI’s Combined DNA Index

System—a centrally-managed database linking DNA profiles

culled from federal, state, and territorial DNA collection pro-

3

The Act has since been amended to authorize DNA collection “from

individuals who are arrested, facing charges, or convicted [of qualifying

felonies,] or from non-United States persons who are detained under the

authority of the United States.” See Violence Against Women and Depart-

ment of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,

§ 1004(a), 119 Stat. 2960, 3085 (2006). We do not address the constitu-

tionality of the 2006 version of the Act, which greatly expanded the appli-

cability of the statute beyond convicted individuals.

4

Kincade provides a fuller description of the mechanics of the DNA Act

and CODIS. 379 F.3d at 817-20 (plurality opinion).

15306 UNITED STATES v. KRIESEL

grams, as well as profiles drawn from crime-scene evidence,

unidentified remains, and genetic samples voluntarily pro-

vided by relatives of missing persons. See Kincade, 379 F.3d

at 819 (plurality opinion).

The 2000 Act also provided privacy protection standards,

which remain in place after the 2004 amendment. Each act of

unauthorized collection, use, or disclosure of a DNA sample

is a separate crime, and “[a] person who knowingly discloses

a sample or result described in subsection (a) in any manner

to any person not authorized to receive it, or obtains or uses,

without authorization, such sample or result, shall be fined not

more than $250,000, or imprisoned for a period of not more

than one year.” 42 U.S.C. § 14135e(c). Subsection (a) pro-

vides that in general, “any sample collected under, or any

result of any analysis carried out under, section 14135,

14135a, or 14135b of this title may be used only for a purpose

specified in such section.” Id. § 14135e(a).

II. KRIESEL’S CLAIMS

In March 1999, Thomas Edward Kriesel, Jr. pleaded guilty

to one count of conspiracy to commit the crime of possession

with intent to distribute methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) and 846. He was sentenced to thirty

months of imprisonment and three years of supervised

release. At the time of judgment, the terms of Kriesel’s super-

vised release included this standard condition: “You shall

answer truthfully all inquiries by the probation officer and fol-

low the instructions of the probation officer.” Kriesel was also

advised that he “shall submit his person, residence, place of

employment or vehicle to a search upon request by the U.S.

Probation Office.”

When he was initially scheduled for DNA testing, Kriesel

informed the probation officer that he was opposed in princi-

ple to the government’s collection and permanent storage of

his DNA. In August 2005, the Probation Department peti-

UNITED STATES v. KRIESEL 15307

tioned the district court to revoke Kriesel’s supervision

because he failed to report for DNA testing. Because Kriesel’s

conviction for conspiracy to distribute methamphetamine is a

felony, it is a “qualifying Federal offense” under the DNA

Backlog Elimination Act as amended in 2004. 42 U.S.C.

§ 14135a(d) (2004). At the hearing on the petition to revoke

supervised release, Kriesel’s counsel argued that the Attorney

General promulgated the regulation governing DNA collec-

tion in violation of the notice and comment provisions of the

Administrative Procedure Act (“APA”), 5 U.S.C. § 553, and

that the DNA Act as amended in 2004 violated the Fourth

Amendment’s prohibition on unreasonable searches and sei-

zures. See U.S. Const., amend. IV.

The district court rejected these arguments and upheld both

the validity of the regulation and the constitutionality of the

Act. The district court also granted a stay of its order pending

appeal.

III. APA CHALLENGE

[1] Kriesel first contends that the Attorney General was

required to follow the notice and comment procedures in 5

U.S.C. § 553 because in revising 28 C.F.R. § 28.2, the Attor-

ney General promulgated a substantive or legislative rule. The

APA provides that administrative rules must be adopted

through the rulemaking process, which includes notice and an

opportunity for public comment. 5 U.S.C. §§ 551(4), (5); 553.

Although not referenced in the statute, the courts have denom-

inated such rules as “legislative rules.” See Richard J. Pierce,

Jr., Distinguishing Legislative Rules from Interpretive Rules,

52 ADMIN. L. REV. 547, 549 (2000). In contrast, the APA spe-

cifically exempts “interpretive rules” from the rulemaking

process. 5 U.S.C. § 553(b)(A).

[2] The Attorney General’s regulation issued in response to

the 2004 amendment is a classic interpretive rule: it is a rule

“issued by an agency to advise the public of the agency’s con-

15308 UNITED STATES v. KRIESEL

struction of the statutes and rules which it administers.”

Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)

(quoting United States Department of Justice, Attorney Gen-

eral’s Manual on the Administrative Procedure Act (1947));

see also Hemp Indus. Ass’n v. Drug Enforcement Agency, 333

F.3d 1082, 1087 (9th Cir. 2003) (“In general terms, interpre-

tive rules merely explain, but do not add to, the substantive

law that already exists in the form of a statute or legislative

rule.”).

The 2004 amendment dictates the basis for the regulatory

revision. The statute provides in relevant part: “[t]he offenses

that shall be treated for purposes of this section as qualifying

Federal offenses are the following offenses, as determined by

the Attorney General: (1) Any felony.” Justice for All Act,

§ 203(b).

[3] The Attorney General issued regulations that mirror the

statute, by designating “any felony” as a qualifying offense.

28 C.F.R. § 28.2(b)(1). The regulations define “felony” in

accord with federal law as an “offense that would be classi-

fied as a felony under 18 U.S.C. § 3559(a) or that is specifi-

cally classified by a letter grade as a felony.” Id. § 28.2(a).

Kriesel’s contention, which is not easy to divine, is appar-

ently that by designating “all” felonies, rather than some, the

Attorney General was legislating rather than interpreting the

statute. This argument is difficult to countenance as the Attor-

ney General simply defined felony in accord with an existing

federal standard and adopted the “any felony” designation

directly from the statutory language. See H.R. Rep. No. 108-

711 (2004), as reprinted in 2005 U.S.C.C.A.N. 2274, 2284,

2004 WL 2348416 (stating that the 2004 amendment meant

to authorize collection of DNA samples from “all felons con-

victed of Federal crimes and qualifying military offenses.”).

In promulgating the regulation, the Attorney General specifi-

cally recognized that “[t]he notion of a ‘felony’ is a standard,

familiar concept in Federal criminal law, and this rule simply

UNITED STATES v. KRIESEL 15309

refers to existing statutory provisions for its definition,” and

that § 28.2 simply “defines ‘felony’ as it is ordinarily

understood—i.e., as referring to offenses for which the maxi-

mum authorized term of imprisonment exceeds one year.”

DNA Sample Collection, 70 Fed. Reg. 4,764, 4,766 (citing 18

U.S.C. § 3559(a)).

[4] As the Attorney General explained, he understood the

2004 amendment itself to “authorize[ ] DNA sample collec-

tion from all Federal offenders convicted of felonies.” DNA

Sample Collection, 70 Fed. Reg. 4,766. We earlier observed

that “penalizing the agency” for explaining the bad news

about the DNA Act, “by labeling the explanation ‘substan-

tive,’ would be killing the messenger. The regulation

impose[s] no other substantive legal duties . . . other than

what the statute already imposed.”5 Alcaraz v. Block, 746 F.2d

593, 613-14 (9th Cir. 1984). Nothing in these regulations sup-

ports a claim that the rules are legislative and thus merit a

full-blown rulemaking process.

IV. CONSTITUTIONAL CHALLENGE

Every circuit to consider a Fourth Amendment challenge to

the 2004 Act has reached the same conclusion: collecting

DNA from nonviolent felons as authorized by the Act does

not violate the Fourth Amendment.6 The majority of circuits

5

By contrast, the Attorney General specifically acknowledged his dis-

cretion in “mak[ing] judgments in determining which particular offenses

constitute ‘crimes of violence’ as defined in 18 U.S.C. [§] 16—but these

judgments were already made, following public notice and the receipt of

comments, in the version of 28 C.F.R. [§] 28.2 that was published on

December 29, 2003, and went into effect on January 28, 2004 [68 Fed.

Reg. 74,855]. The revised regulation does not change these determina-

tions.” DNA Sample Collection, 70 Fed. Reg. 4,766.

6

Whether a search is unreasonable under the Fourth Amendment is a

question of law reviewed de novo. United States v. Stafford, 416 F.3d

1068, 1073 (9th Cir. 2005). “The compulsory extraction of blood for DNA

profiling unquestionably implicates the right to personal security

embodied in the Fourth Amendment, and thus constitutes a ‘search’ within

the meaning of the Constitution.” Kincade, 379 F.3d at 821 n.15 (plurality

opinion).

15310 UNITED STATES v. KRIESEL

adopt a “totality of the circumstances” framework. United

States v. Weikert, ___ F.3d ___, 2007 WL 2265660, at *7 (1st

Cir. Aug. 9, 2007); United States v. Banks, 490 F.3d 1178,

1183 (10th Cir. 2007); United States v. Kraklio, 451 F.3d 922,

924 (8th Cir. 2006); United States v. Castillo-Lagos, 147 Fed.

App’x 71 (11th Cir. 2005).7 In contrast, the Second and Sev-

enth Circuits rely on the “special needs test.” United States v.

Amerson, 483 F.3d 73, 78 (2d Cir. 2007); United States v.

Hook, 471 F.3d 766, 772-74 (7th Cir. 2006). The Sixth Circuit

has upheld the 2004 Act under both tests. United States v.

Conley, 453 F.3d 674, 677-81 (6th Cir. 2006).8

In light of Samson v. California, we continue to ground our

analysis in the totality of circumstances test. 126 S. Ct. 2193

(2006). Before Samson, no Supreme Court case had addressed

this issue. See Kincade, 379 F.3d at 832 n.27 (plurality opin-

ion). In Samson, however, the Court applied the totality of the

circumstances test in upholding a California law providing

that, as a condition for release, every prisoner eligible for state

parole must agree to be subject to a search or seizure by a

parole officer with or without a warrant, and with or without

cause. 126 S. Ct. at 2197, 2199 n.3, 2202.

Taking our cue from Samson, we reaffirm that “the touch-

stone of the Fourth Amendment is reasonableness,” id. at

2201 n.4, and adopt the “general Fourth Amendment

approach,” which “examin[es] the totality of the circum-

7

Prior to 2007, the Eleventh Circuit allowed citation to unpublished dis-

positions as persuasive authority. See 11th Cir. R. 36-2, Robert Timothy

Reagan, Federal Judicial Center, Citing Unpublished Federal Appellate

Opinions Issued Before 2007 (2007), http://www.uscourts.gov/rules/

Unpub_Opinions.pdf.

8

The federal and state courts have also upheld a variety of other statutes

authorizing DNA collection from all convicted felons. See, e.g., Green v.

Berge, 354 F.3d 675 (7th Cir. 2004) (upholding Wisc. Stat. Ann. § 165.77

(West 1999)); Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) (upholding

Va. Code Ann. § 19.2-310.2 (1990)); Doles v. State, 994 P.2d 315 (Wyo.

1999) (upholding Wyo. Stat. Ann. § 7-19-403 (1997)).

UNITED STATES v. KRIESEL 15311

stances to determine whether a search is reasonable.” Id. at

2197 (quoting United States v. Knights, 534 U.S. 112, 118

(2001)) (internal quotation marks omitted). “Whether a search

is reasonable ‘is determined by assessing, on the one hand, the

degree to which it intrudes upon an individual’s privacy, and

on the other, the degree to which it is needed for the promo-

tion of legitimate governmental interests.’ ” Id. (quoting

Knights, 534 U.S. at 118-19).9

A. KRIESEL’S PRIVACY INTEREST

[5] In assessing the nature of Kriesel’s privacy interest, “we

begin our resolution of the issue by taking note of the well-

established principle that parolees and other conditional

releasees are not entitled to the full panoply of rights and pro-

tections possessed by the general public.” Kincade, 379 F.3d

at 833 (plurality opinion). Rather, the Supreme Court has

often recognized, as it did yet again in Samson, that parolees

“have severely diminished expectations of privacy, and that

the Fourth Amendment does not necessarily prohibit a police

officer from conducting a suspicionless search of a parolee.

126 S. Ct. at 2199, 2202; see also Kincade, 379 F.3d at 834

(plurality opinion) (“[C]onditional releasees enjoy severely

constricted expectations of privacy relative to the general citi-

zenry.”)

[6] As a direct consequence of Kriesel’s status as a super-

vised releasee, he has a diminished expectation of privacy in

his own identity specifically, and tracking his identity is the

primary consequence of DNA collection. The DNA analyzed

by the FBI consists primarily of “junk DNA”—“non-genic

stretches of DNA not presently recognized as being responsi-

ble for trait coding” that were purposefully selected because

9

For Fourth Amendment purposes, our cases do not distinguish among

parolees, probationers, and those on supervised release. Kincade, 379 F.3d

at 817 n.2 (citing United States v. Harper, 928 F.2d 894, 896 n.1 (9th Cir.

1991)).

15312 UNITED STATES v. KRIESEL

“they are not associated with any known physical or medical

characteristics.” Kincade, 379 F.3d at 818 (plurality opinion)

(internal quotation marks omitted). But see id. n.6 (“Recent

studies have begun to question the notion that junk DNA does

not contain useful genetic programming material.”). And,

based on Kriesel’s status as a qualified offender on supervised

release, he can claim only the most limited expectation of pri-

vacy, if any, in his identity given that he was lawfully con-

victed of a predicate offense. See id. at 842 n.3 (Gould, J.,

concurring) (noting that it is permissible to maintain identify-

ing fingerprints of felons even after they have been released

because fingerprints reveal only identity, but declining to

endorse the practice of retaining DNA in the CODIS database

after a felon has paid his debt to society).

In assessing the nature of the privacy intrusion, we are

mindful of the caution that DNA often reveals more than

identity, and that with advances in technology, junk DNA

may reveal far more extensive genetic information. Judge

Gould observed in his concurrence in Kincade, “unlike finger-

prints, DNA stores and reveals massive amounts of personal,

private data about that individual, and the advance of science

promises to make stored DNA only more revealing over time.

Like DNA, a fingerprint identifies a person, but unlike DNA,

a fingerprint says nothing about the person’s health, their pro-

pensity for particular disease, their race and gender character-

istics, and perhaps even their propensity for certain conduct.”

Id. n.3; see also Amerson, 483 F.3d at 85 (recognizing “the

vast amount of sensitive information that can be mined from

a person’s DNA and the very strong privacy interests that all

individuals have in this information” (citing Kincade, 379

F.3d at 843 (Reinhardt, J., dissenting)).

[7] The concerns about DNA samples being used beyond

identification purposes are real and legitimate. Nevertheless,

those concerns are mitigated by the Act’s privacy protections,

which provide criminal penalties for the unauthorized use of

DNA samples. They are also outweighed by the competing

UNITED STATES v. KRIESEL 15313

notion that supervised releasees have little to no privacy inter-

est in their identities. See 42 U.S.C. § 14135e(c) (“A person

who knowingly discloses a [DNA] sample or result . . . in any

manner to any person not authorized to receive it, or obtains

or uses, without authorization, such sample or result, shall be

fined not more than $250,000, or imprisoned for a period of

not more than one year. Each instance of disclosure, obtain-

ing, or use shall constitute a separate offense under this subsec-

tion.”).10

[8] The physical drawing of blood also implicates Kriesel’s

interest in bodily integrity, “a cherished value of our society.”

Schmerber v. California, 384 U.S. 757, 772 (1966). A blood

draw “is inherently more intrusive than a purely external

search such as fingerprinting.” See Weikert, 2007 WL

2265660, at *8. Nevertheless, the Supreme Court has held that

the intrusion caused by a blood test itself “is not significant,

since such ‘tests are a commonplace in these days of periodic

physical examinations and experience with them teaches that

the quantity of blood extracted is minimal, and that for most

people, the procedure involves virtually no risk, trauma, or

pain.’ ” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602,

625 (1989) (quoting Schmerber, 384 U.S. at 771). “[I]t is

[also] a commonly accepted condition of probation [or super-

vised release] that the probationer [or releasee] submit to drug

tests, with the result that, often, the requisite DNA sample can

be collected without any incremental intrusion.” Amerson,

483 F.3d at 85. Consequently, the additional privacy implica-

tions of a blood test collecting DNA, as opposed to a cheek

swab or other mechanism, do not significantly alter our analy-

sis. Cf. id. at 84-85 (distinguishing between the physical tak-

ing of DNA samples and the “more serious invasion” of

10

“Should the uses to which ‘junk DNA’ can be put be shown in the

future to be significantly greater than the record before us today suggests,

a reconsideration of the reasonableness balance struck would be neces-

sary,” even with respect to individuals in Kriesel’s exact position. Amer-

son, 483 F.3d at 85 n.13.

15314 UNITED STATES v. KRIESEL

“analysis and maintenance” of an individual’s information).

Based on all these considerations, we conclude that as a con-

victed felon who currently continues to serve his term of

supervised release, Kriesel has a diminished privacy interest

in the collection of his DNA for identification purposes.

We emphasize that our ruling today does not cover DNA

collection from arrestees or non-citizens detained in the cus-

tody of the United States, who are required to submit to DNA

collection by the 2006 version of the DNA Act. See 42 U.S.C.

§ 14135a(a)(1)(A) (2006). Nor do we have before us “a peti-

tioner who has fully paid his or her debt to society, who has

completely served his or her term, and who has left the penal

system . . . . Once those previously on supervised release have

wholly cleared their debt to society, the question may be

raised, ‘Should the CODIS entry be erased?’ ” Kincade, 379

F.3d at 841 (Gould, J., concurring in the judgment). We do

not answer these questions. See also Green, 354 F.3d at 679-

81 (Easterbrook, J., concurring) (noting that “[f]elons whose

terms have expired” form a different category of individuals

than supervised releasees for the purposes of a Fourth

Amendment inquiry). Rather, our decision is confined to the

precise circumstances before us.

B. GOVERNMENT’S INTERESTS

In Kincade, the plurality identified as “undeniably compel-

ling” and “monumental” three governmental interests justify-

ing DNA collection from violent felons: First, “[b]y

establishing a means of identification that can be used to link

conditional releasees to crimes committed while they are at

large,” compulsory DNA profiling serves society’s interest in

ensuring that releasees comply with the conditions of their

release. 379 F.3d at 838 (plurality opinion). Second, the deter-

rent effect of such profiling fosters society’s interest in reduc-

ing recidivism. Id. Finally, collecting the DNA of offenders

contributes to the solution of past crimes. Id. In elaborating on

those interests, the analysis did not distinguish as a practical

UNITED STATES v. KRIESEL 15315

matter between violent and nonviolent felons. Here the gov-

ernment advances the same arguments with respect to nonvio-

lent felons, and Kincade’s rationale applies with equal force.

[9] The governmental interest in identifying releasees and

linking them to crimes committed while “at large” is signifi-

cant. While DNA evidence is often central to the investiga-

tions of violent crimes such as murder or sexual assault, see

Roe v. Marcotte, 193 F.3d 72, 82 (2d Cir. 1999), it can be use-

ful in solving nonviolent crimes as well. As the Tenth Circuit

recently noted, “[i]t is important to realize . . . that DNA can

be extracted from hair, saliva, and numerous other parts of our

bodies that even a non-violent criminal could leave behind on

a piece of inculpatory evidence.” Banks, 490 F.3d at 1190; see

also Kincade, 379 F.3d at 838 n.37; Amerson, 483 F.3d at 88

n.15 (“[T]here are also indications that DNA can be, and is

increasingly, being used to solve nonviolent crimes.”).

Although fingerprint evidence might often be sufficient to

identify a past offender, DNA collection provides another

means for the government to meet its significant need to iden-

tify offenders who continue to serve a term of supervised

release. Cf. Banks, 490 F.3d at 1190.

[10] With respect to the deterrent effect, “[t]he Supreme

Court has repeatedly recognized that rates of re-arrest among

parolees and probationers are significantly higher than the

general crime rate.” Banks, 490 F.3d at 1189; see also Sam-

son, 126 S. Ct. at 2200 (collecting cases describing the state’s

interests in reducing recidivism and noting that “parolees . . .

are more likely to commit future criminal offenses”) (internal

quotation marks and citation omitted). “[T]he very assump-

tion of the institution of probation” or supervised release is

that the probationer is “more likely . . . to violate the law.”

Griffin v. Wisconsin, 483 U.S. 868, 880 (1987).

[11] Kriesel counters that nonviolent offenders have lower

recidivism rates than violent offenders. This argument is not

persuasive in Kriesel’s case. Indeed, he is already a recidivist,

15316 UNITED STATES v. KRIESEL

as he violated the terms of his release when he tested positive

for controlled substances. While it is true that “recidivism

rates vary with factors like the offender’s age and type of con-

viction,” nonetheless, “the high likelihood that non-violent

offenders will re-offend—and therefore, as the Supreme Court

recognized in Knights, be put in the position to conceal their

crimes and identities from the authorities—underscores the

Government’s interest in obtaining the most accurate identifi-

cation information it can from these individuals.” See Banks,

2490 F.3d at 1191.11

[12] Finally, the Kincade plurality also explained that “by

contributing to the solution of past crimes, DNA profiling of

qualified federal offenders helps bring closure to countless

victims of crime who long have languished in the knowledge

that perpetrators remain at large.” 379 F.3d at 839. Although

the weight of this rationale may vary when considering indi-

vidual types of crimes, nonviolent crimes can also cause sig-

nificant and lasting damage to innocent individuals. For

example, a family defrauded of its life savings, home, and

financial stability by an unscrupulous con artist running a

telemarketing or mail fraud scheme is just as much a victim

as a family that is the victim of a burglary, and just as DNA

samples can clear suspects of crimes, they can also contribute

to the resolution of past crimes. The government may cer-

tainly credit those concerns in pursuing ways to solve open

investigations.

[13] In sum, we agree in principle with the other circuits

that have considered the issue, and hold that in the case before

us, requiring Kriesel to comply with the 2004 amendment to

11

To be sure, the rate of recidivism for nonviolent offenders is less than

for violent offenders. Nonetheless, the rate remains significant. For exam-

ple, the recidivism rate for drug offenders is 21.2%. U.S. Sentencing Com-

mission, Measuring Recidivism: The Criminal History and Computation

of the Federal Sentencing Guidelines 30 (May 2004), available at http://

www.ussc.gov/research.htm.

UNITED STATES v. KRIESEL 15317

the DNA Act is constitutional because the government’s sig-

nificant interests in identifying supervised releasees, prevent-

ing recidivism, and solving past crimes outweigh the

diminished privacy interests that may be advanced by a con-

victed felon currently serving a term of supervised release.

AFFIRMED.

B. FLETCHER, Circuit Judge, dissenting:

The majority holds, with an air of shrugging inevitability,

that without a warrant, without probable cause, indeed with-

out any suspicion whatsoever, the federal government may

seize and repeatedly search the DNA of all federal felons on

supervised release, regardless of their offense or their likeli-

hood to re-offend. They sanction the inclusion of that DNA

in a massive and permanent computer database, the sole pur-

pose of which is to aid generalized criminal investigation.

This offends not only the Fourth Amendment but our prece-

dents. I respectfully dissent.1

I. FACTUAL BACKGROUND AND STATUTORY FRAMEWORK

In March of 1999, Kriesel was convicted of a non-violent

drug offense, conspiracy to possess methamphetamine with

intent to distribute. He was sentenced to thirty months impris-

onment and placed on supervised release. After his release in

February 2003, Kriesel failed three urinalyses, testing positive

once for morphine and twice for marijuana. In light of his

steady employment and established ties to the community,

1

I concur in Part III of the majority’s opinion and analysis of Kriesel’s

APA challenge. For reasons explained below, however, that portion of the

opinion merely holds that the Attorney General did not violate the APA’s

procedural requirements in promulgating regulations to implement an

unconstitutional statute.

15318 UNITED STATES v. KRIESEL

however, the court nonetheless allowed Kriesel to remain on

supervised release. Since early 2005, he has consistently

passed drug and alcohol tests and has remained fully

employed. No specific requirement that Kriesel submit to

DNA testing was included in the terms of his release. It did

include language that he must “follow the instructions of the

probation officer” and that he “submit his person . . . to a

search upon request by the U.S. Probation Office.” When

requested by the probation officer to submit to DNA testing,

he refused based on his objection on principle to invasion of

his privacy interest without cause. This resulted in revocation

of his probation, stayed, however, pending appeal.

Non-violent drug offenders like Kriesel fall within a cate-

gory of federal offenders that, according to government-

conducted studies, have one of the lowest rates of recidivism.

U.S. Sentencing Commission, Measuring Recidivism: The

Criminal History and Computation of the Federal Sentencing

Guidelines 13 (May 2004), available at http://www.ussc.gov/

research.htm (Commission Report) (drug trafficking offenders

within the group of offenders that “are overall the least likely

to recidivate”); U.S. Dept. of Justice, Bureau of Justice Statis-

tics, Offenders Returning to Federal Prison, 1986-97 1, 3

(Sept. 2000) (persons convicted of drug offenses were the

least likely to return to prison, with lower recidivism rate than

property and public-order offenses). The government does not

dispute the accuracy of these studies, nor did the government

come forward with any contrary evidence to suggest that non-

violent drug offenders present a high risk of recidivism.

The statute the court approves today is a revision, and sig-

nificant extension, of the predecessor version of the 2000

DNA Act. Under the 2000 DNA Act, a limited number of

crimes were categorized as a “qualifying . . . offense,” and

only supervised releasees convicted of those qualifying

offenses were required to submit to DNA sampling as a con-

dition of their release. See DNA Analysis Backlog Elimina-

tion Act, Pub. L. No. 106-546, § 3, 114 Stat. 2726, 2729-30

UNITED STATES v. KRIESEL 15319

(2000) (hereinafter “2000 DNA Act”). The DNA obtained

from those samples are placed within “CODIS,” the FBI’s

Combined DNA Index System. CODIS is a database that acts

as a clearinghouse for DNA information taken from state and

federal DNA collection programs, as well as crime scenes.

The offenses enumerated in the 2000 DNA Act were primar-

ily violent crimes and crimes related to illegal sexual activity.

Id.

The Justice for All Act in 2004, however, amended the

DNA Act so that “any felony” now serves as a qualifying

offense. Pub. L. No. 108-405, § 203(b), 118 Stat. 2260, 2270

(2004) (hereinafter “2004 DNA Act”). As before, that DNA

is filed in the CODIS database. Notably, although the 2004

amendment brought the entire universe of non-violent federal

felonies within the Act’s purview, the House Report that

accompanied the amendment does not suggest that DNA evi-

dence has any utility in solving non-violent crimes. See H.R.

Rep. 108-711 (2004), reprinted in 2005 U.S.C.C.A.N. 2274.

To the contrary, the clearest statement on this point is that,

“When used to its full potential, DNA evidence will help

solve and may even prevent some of the most serious violent

crime.” 2005 U.S.C.C.A.N. at 2277 (emphasis added).

In order to obtain his DNA, blood will be extracted from

Kriesel while he is on supervised release, but the 2004 DNA

Act contains no provision that requires the destruction or

return of that biological sample (or the DNA analysis derived

from it) once his period of supervised release ends. Indeed,

the statute provides only for the destruction of the DNA anal-

ysis of a person included in CODIS in very limited circum-

stances. The burden to remove DNA from CODIS that was

collected as a result of a conviction for a qualifying offense

falls on the felon. Only by providing a “certified copy of a

final court order establishing that such conviction has been

overturned” will a person’s DNA analysis be expunged. 42

U.S.C. § 14132(d)(1)(A)(i). Thus, once Kriesel’s DNA is

placed within CODIS, it will remain there permanently and

15320 UNITED STATES v. KRIESEL

can be continually accessed and searched so long as the

search is conducted by Federal, State or local “criminal justice

agencies for law enforcement identification purposes. . . .” 42

U.S.C. § 14132(b)(3)(A). Simply put, once they have his

DNA, police at any level of government with a general crimi-

nal investigative interest in Kriesel can tap into that DNA

without any consent, suspicion, or warrant, long after his

period of supervised release ends.

Although it is easy enough to conceive of the hypothetical

risks to civil liberties invited by approving this kind of

regime, here, there is no need to speculate. The most recent

version of the DNA Act permits extraction of DNA from “in-

dividuals who are arrested, facing charges, or convicted [of

qualifying felonies] or from non-United States persons who

are detained under the authority of the United States.” 42

U.S.C. § 14135a(a)(1)(A) (2006).2

II. DISCUSSION

In our fractured opinion in United States v. Kincade, a plu-

rality of the court reasoned that the 2000 DNA Act was prop-

erly analyzed under “a traditional assessment of

reasonableness gauged by the totality of the circumstances.”

379 F.3d 813, 831 (9th Cir. 2004) (en banc). That view did

not, however, command a majority of the court. Judge Gould

separately concurred in Kincade, arguing that the DNA Act’s

regime of suspicionless searches was subject to a “special

needs” analysis. Id. at 840. Thus, although in Kincade the

court ultimately upheld the constitutionality of the 2000 DNA

Act, the opinion failed to produce any cohesive view on the

appropriate analytical construct.

2

There is a parallel provision of the act that allows for an arrestee’s

DNA to be expunged only if the Attorney General receives “a final court

order establishing that [ ] charge[s] [have] been dismissed or [have]

resulted in an acquittal or that no charge was filed within the applicable

time period.” 42 U.S.C. § 14132(d)(1)(A)(ii).

UNITED STATES v. KRIESEL 15321

How analytically to approach the constitutionality was

effectively answered by the Supreme Court in Samson v. Cali-

fornia, 126 S.Ct. 2193 (2006). In Samson, the Supreme Court

held that the totality-of-the-circumstances test was the proper

mode of analysis to examine a California statute (Cal. Penal

Code § 3067(a) (West 2000)) that permits suspicionless and

warrantless searches of California parolees while they remain

on parole. Id. at 2197. Samson, however, merely clarifies that

“totality of the circumstances” is the proper analytical con-

struct when confronted with a statute that authorizes warrant-

less and suspicionless searches of parolees. Samson does not

dictate, or give any support to, the outcome reached by the

majority in this case.

Samson re-stated the now familiar totality-of-the-

circumstances test used to determine whether or not a search

is “reasonable” by “assessing, on one hand, the degree to

which it intrudes upon an individual’s privacy, and on the

other, the degree to which it is needed for the promotion of

legitimate governmental interests.” Id. (quoting United States

v. Knights, 534 U.S. 112, 118-119, 122 S.Ct. 587, 151

L.Ed.2d 497 (2001)). In Samson, the California statute under

consideration survived Fourth Amendment scrutiny based on

two premises. First, Samson, by virtue of his status as a paro-

lee, had a “severely diminished expectation[ ] of privacy.” Id.

at 2199. Second, the Court acknowledged California’s legiti-

mate interest in “supervising parolees” as a means to deter

recidivism present in the parolee population. Id. at 2200. But,

as the Court repeatedly emphasized, the governmental interest

was inextricably linked to the need to supervise a parolee

while he remained on parole. See id. at 2200-01 (“Thus, most

parolees require intense supervision . . . individualized suspi-

cion would undermine the State’s ability to effectively super-

vise parolees . . . the incentive-to-conceal concern justified an

‘intensive’ system for supervising probationers in Griffin. . . .

That concern applies with even greater force to a system of

supervising parolees . . . [individualized suspicion required by

other State parole systems of little relevance] to our determi-

15322 UNITED STATES v. KRIESEL

nation whether California’s supervisory system is drawn to

meet its needs and is reasonable.”) (emphases added). Thus,

Samson does not lend constitutional support to a statute that

sanctions warrantless and suspicionless searches untethered

from an immediate supervisory need. See United States v.

Weikert, No. 06-1861, ___ F.3d ___, 2007 WL 2265660, at

*14 (1st Cir. Aug. 9, 2007) (Stahl, J., dissenting) (“[T]he

Supreme Court [in Samson] has now identified three limited

circumstances in which a suspicionless search will survive

Fourth Amendment review: (1) programmatic searches; (2)

special needs searches; and (3) searches conducted as part of

a state’s conditional release program. This last category is

limited by the Court’s language to a state search program that

is genuinely designed to improve the monitoring and reinte-

gration of conditional releasees.”). With this framework and

guidance from the Court in mind, I turn to the 2004 DNA Act.

A. Totality-of-the-Circumstances and Kincade

The most apposite precedents in this Circuit to pass on the

constitutionality of the 2004 DNA Act are Samson and the

plurality decision from Kincade. As noted, three years ago the

far more limited 2000 DNA Act was upheld by a plurality in

Kincade, relying on a totality-of-the-circumstances analysis.

379 F.3d at 838-40. The plurality, however, was careful to

note that their decision was limited to the version of the Act

before the court, a version that targeted violent criminals. Dis-

tinguishing state programs that collected information from

“non-violent drug offenders,” the plurality emphasized that “it

is therefore particularly important to observe that we deal here

solely with the legality of requiring compulsory DNA profil-

ing of qualified federal offenders on conditional release.” Id.

at 819 n.9. The plurality made clear that their decision there-

fore did not concern “the authority of the federal government

. . . to pass less narrowly tailored legislation.” Id. (emphasis

added). Thus, while Kincade provides some guidance, by its

own terms it does not purport to decide whether or not the

UNITED STATES v. KRIESEL 15323

“less narrowly tailored legislation” before us today passes

Fourth Amendment scrutiny. See id.

Although none are controlling, the majority places great

weight on recent decisions from other circuits that have

upheld the 2004 DNA Act against a Fourth Amendment chal-

lenge. Maj. Op. at 15309-10, 15316-17. A closer look at those

cases reveals that the precise issues before us today have been

treated with more breadth than depth. Two of those decisions

relied on a “special needs” test which, in light of Samson, is

the improper analytical method for analysis of the 2004 DNA

Act. See United States v. Amerson, 483 F.3d 73, 78 (2d Cir.

2007); United States v. Hook, 471 F.3d 766, 772-74 (7th Cir.

2006).3

The decisions of the Eighth and Eleventh Circuits contain

little to no analysis of the interests at stake when the govern-

ment subjects all non-violent felony offenders to compulsory

DNA sampling. In United States v. Krakilo, 451 F.3d 922,

924-25 (8th Cir. 2006), the court’s discussion is devoted

almost entirely to choosing between a special needs or

totality-of-the-circumstances analysis. Once the totality-of-the

circumstances test is chosen, Krakilo summarily concludes

with a one-sentence determination that the 2004 DNA Act is

constitutional under that standard. Id. at 925. Similarly, in an

unpublished opinion the Eleventh Circuit upholds the 2004

DNA Act based on circuit precedent concerning a state-based

DNA collection statute, without engaging in any analysis

whatsoever as to the government’s interests in permanently

maintaining the DNA of non-violent federal felons. United

3

The Supreme Court has considered and rejected the contention that the

government’s ever-present generalized interest in criminal law enforce-

ment qualifies as a “special need.” Indianapolis v. Edmond, 531 U.S. 32,

41-42, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Thus, even if it were the

proper method of analysis (and after Samson it is not), the 2004 DNA Act

would fail to survive Fourth Amendment review under that rubric. Kin-

cade, 379 F.3d at 854-57 (Reinhardt, J., dissenting) (analyzing 2000 DNA

Act under special needs).

15324 UNITED STATES v. KRIESEL

States v. Castillo-Lagos, 147 Fed. App’x 71, 75 (11th Cir.

2005). In Weikert, the First Circuit engages in a more substan-

tial totality-of-the-circumstances analysis than the other deci-

sions, but it does not consider how lowered recidivism rates

among non-violent offenders would affect the government’s

interests under that analysis. No. 06-1861, ___ F.3d ___, 2007

WL 2265660, at **9-10.

In United States v. Conley, in order to justify the 2004

DNA Act under a special needs analysis, the Sixth Circuit dis-

cussed with approval government data that suggested that

white-collar crime had recidivism rates “in certain groups,”

close to recidivism rates for firearms and robbery offenses.

453 F.3d 674, 679 (6th Cir. 2006).4 Conley, however, is silent

on recidivism rates for non-violent drug offenders like Krie-

sel, and the court in Conley does not cite to any recidivism

argument advanced by the government when trying to justify

the 2004 DNA Act under the totality of the circumstances. Id.

at 680-81.

Only Banks v. United States, 490 F.3d 1178 (10th Cir.

2007), genuinely addresses whether the government’s inter-

ests in maintaining a permanent DNA collection of felons on

supervised release are diminished in the case of non-violent

offenders. The Tenth Circuit in Banks concedes that, “[t]o be

sure, DNA might prove less valuable in solving non-violent

crimes than violent crimes, making the Government’s interest

in testing more compelling with respect to felons convicted of

violent crimes.” 490 F.3d at 1189-90. The court goes on to

explain away this distinction, however, by characterizing a

supervised releasee’s privacy interests as virtually non-

existent and contending that “the effectiveness of the Govern-

ment’s plan need not be high where the objective is signifi-

cant and the privacy intrusion is minimal.” Id. at 1190.

4

The appellant in Conley had been convicted of bank fraud, committed

while she was on probation for a similar fraud offense. 453 F.3d at 674-

75.

UNITED STATES v. KRIESEL 15325

I have two problems with this analysis. First, Banks places

such little weight on a releasee’s privacy interest as to make

it a meaningless consideration. Second, the argument that a

“significant” government objective is sufficient even if the

statute under consideration does not actually promote that

objective is sophistry—and is shockingly wrong. Knights

instructs that evaluating the reasonableness of a search for

Fourth Amendment purposes should be grounded in the “de-

gree to which it is needed for the promotion of legitimate gov-

ernmental interests.” 534 U.S. at 118-119 (emphasis added)

(quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct.

1297, 143 L.Ed.2d 408 (1999)). It simply cannot be correct

that a statute authorizing warrantless searches can pass Fourth

Amendment scrutiny with nothing more than a hypothetical

interest advanced by the government but not actually pro-

moted by the statute.

The Tenth Circuit in Banks also cited statistical data col-

lected from state prisons in 1994 indicating that “non-violent

offenders have higher recidivism rates than the general popu-

lation.” Id. at 1191 (citing U.S. Dept. of Justice, Bureau of

Justice Statistics, Profile of Nonviolent Offenders Exiting

State Prison (2004), http://www.ojp.usdoj.gov/bjs/pub/pdf/

pnoesp.pdf).5 Working with these statistics, the court in Banks

goes on to argue without authority or empirical evidence that

non-violent offenders who recidivate are “committing crimes

that DNA might solve (for example, violent offenses, drug

offenses, and property offenses.).” Id. This unsupported leap

is remarkable, given that just two pages earlier the court con-

cedes that “DNA might prove less valuable in solving non-

violent crimes[.]” Id. at 1189.6

5

The statistics relied on in Banks are undermined by the government

data regarding federal offenders placed in the record by Kriesel here, par-

ticularly drug offenders.

6

The study of state offenders relied on by the court in Banks does not

indicate whether the “violent offenses” are of a type where DNA evidence

could be of assistance. Profile of Nonviolent Offenders Exiting State

Prison at 4. The other two categories, “property offenses” and “drug

offenses,” are not defined or characterized by the study as violent

offenses.

15326 UNITED STATES v. KRIESEL

Because of the substantial erosion of Fourth Amendment

protection posed by the 2004 DNA Act, we should not uncrit-

ically adopt decisions from other Circuits where controlling

law in this Circuit does not dictate the same outcome. Thus,

with the limitations from Kincade and Samson as a guide, we

should consider Kriesel’s privacy interests as affected by the

2004 DNA Act on the one hand, balanced against the interests

advanced by the government on the other.

B. Kriesel’s Privacy Interests

It is true that conditional releasees like Kriesel have dimin-

ished privacy expectations. Samson, 126 S.Ct. at 2199; Kin-

cade, 379 F.3d at 833. But as the plurality observed in

Kincade, diminished does not mean extinguished. 379 F.3d at

835 (“Let us be clear: Our holding in no way intimates that

conditional releasees’ diminished expectations of privacy

serve to extinguish their ability to invoke the protections of

the Fourth Amendment’s guarantee against unreasonable

searches and seizures. Where a given search or class of

searches cannot satisfy the traditional totality-of-the-

circumstances test, a conditional releasee may lay claim to

constitutional relief—just like any other citizen.”). Thus,

while Kriesel cannot claim the level of protection afforded

ordinary citizens under the Fourth Amendment, his privacy

interests cannot be treated as weightless in the reasonableness

balance.

In considering that privacy interest, I also cannot overlook

that the search here is not limited to the initial extraction of

a biological sample from Kriesel, and with it, his DNA.

Rather, the warrantless “search” permitted by the 2004 DNA

Act extends to repeated searches of his DNA whenever the

government has some minimal investigative interest. Kincade,

379 F.3d at 873 (Kozinski, J., dissenting) (“[I]t is important

to recognize that the Fourth Amendment intrusion here is not

primarily the taking of the blood, but seizure of the DNA fin-

gerprint and its inclusion in a searchable database.”). Thus, I

UNITED STATES v. KRIESEL 15327

look to the interests advanced by the government, mindful of

the fact that the Act permits this ongoing search of Kriesel’s

DNA for his lifetime.7

C. Government’s Interests

In Kincade, the plurality pointed to three interests it

deemed “monumental” in balancing the government’s inter-

ests under the 2000 DNA Act. 379 F.3d at 839. First, it relied

on the use of DNA to provide “a means of identification that

can be used to link conditional releasees to crimes committed

while they are at large,” in order to ensure that a releasee

complies with the terms of his or her release. Id. at 838. Sec-

ond, DNA profiling was claimed to provide a deterrent effect

that “fosters society’s enormous interest in reducing recidi-

vism.” Id. at 839. Last, the plurality pointed to the use of

DNA to solve past crime. Id. As the majority notes, these

same interests are advanced by the government once again to

defend the 2004 DNA Act.

The interest in ensuring compliance with terms of release,

while obviously legitimate, must be viewed in light of the

Court’s decision in Samson. As Samson explained, warrant-

less and suspicionless searches of parolees are sometimes jus-

tified under a totality-of-the-circumstances analysis provided

that they are based on a legitimate supervisory need. 126 S.Ct.

at 2200-01. But, unlike the California statute under consider-

ation in Samson, the 2004 DNA Act permits those searches to

continue once the period of supervised release has ended,

enabling searches divorced from the government’s supervi-

sory interests. On its face, the 2004 DNA Act allows only a

releasee’s DNA profile to be removed if his or her underlying

7

The penalties for unauthorized disclosure of DNA held in CODIS do

nothing to address this, as disclosure of Kriesel’s DNA for general crimi-

nal investigation is a “permissive use[ ]” under the Act. See 42 U.S.C.

§ 14135e(b); 42 U.S.C. § 14132(b)(3)(A) (disclosure permitted “to crimi-

nal justice agencies for law enforcement identification purposes”).

15328 UNITED STATES v. KRIESEL

conviction is later overturned. 42 U.S.C. § 14132(d)(1)(A)(i).

Thus, while ensuring compliance with the terms of supervised

release stands as a credible government objective, the 2004

DNA Act is far broader than necessary to achieve that objec-

tive.

The majority disingenuously refuses to confront the fact

that the 2004 DNA Act clearly permits the retention of Krie-

sel’s DNA once his term of supervised release is over. Appar-

ently, it defines “the precise circumstances before us” as the

rights of a parolee while on parole, with no consideration of

the fact that his DNA will be retained in CODIS and be

searchable for the rest of Kriesel’s lifetime. Maj. Op. at

15314; see also Kincade, 379 F.3d at 841 (Gould, J., concur-

ring in the judgment) (“Once those previously on supervised

release have wholly cleared their debt to society, the question

may be raised, ‘Should the CODIS entry be erased?’ ”). But

we have previously found statutes not “limited by appropriate

regulations so as to preclude general searches,” unconstitu-

tionally overbroad without waiting for the discrete violation

of the Fourth Amendment enabled by that statute. Rush v.

Obledo, 756 F.2d 713, 723 (9th Cir. 1985) (invalidating por-

tion of California statute that allowed warrantless searches of

family day care centers without appropriate narrowing regula-

tions). Without reaching whether the 2004 DNA Act is inde-

pendently invalid under the Fourth Amendment for that

reason, the fact that a DNA entry is permanently lodged in

CODIS at the very least detracts from the weight afforded the

government’s claim that the statute is truly designed as a

supervisory tool.

Next, the deterrent effect advanced by the government is

seriously undermined here because Kriesel has offered unre-

butted data demonstrating that rates of recidivism are among

the lowest for non-violent drug offenders. Measuring Recidi-

vism: The Criminal History and Computation of the Federal

Sentencing Guidelines at 13; Offenders Returning to Federal

Prison, 1986-97 at 1 and 3. The majority excuses the govern-

UNITED STATES v. KRIESEL 15329

ment’s failure to rebut Kriesel’s evidence of low recidivism

rates by asserting that he “is already a recidivist, as he vio-

lated the terms of his release when he tested positive for con-

trolled substances.” Op. at 15315-16. Ironically, the

authorities had all the tools they needed to detect the recidi-

vism without resort to DNA, nor was his conduct a crime

except as it violated parole.

The majority reasons that a statute permitting suspicionless

extraction of DNA from all persons within a population that

has low rates of recidivism is permissible because there is a

basis to conclude that Kriesel himself will re-offend. Thus,

the majority allows the government to escape its failure to jus-

tify a program that requires participants to submit their DNA

without any suspicion, because it has suspicion in this particu-

lar case.8 This syllogism does not help the government do

what it must—make some showing that extracting DNA from

non-violent drug offenders discourages those persons from re-

offending.

Finally, the majority reasons that creating a DNA profile of

non-violent felons like Kriesel will “contribut[e] to the solu-

tion of past crimes.” Maj. Op. at 15316. I agree in principle

that a DNA program with some demonstrable effect on solv-

ing crime within the population profiled may satisfy the

Fourth Amendment. Rise v. Oregon, 59 F.3d 1556, 1561 (9th

Cir. 1995) (“The defendants produced uncontroverted evi-

dence documenting the high rates of recidivism among certain

types of murderers and sexual offenders. Moreover, investiga-

tions of murders and sexual offenses are more likely to yield

the types of evidence from which DNA information can be

derived, such as blood, semen, saliva, and hair evidence, than

8

Moreover, as noted Kriesel’s prior drug lapses were detected and

addressed without the need for his DNA profile—which the government

does not yet have. There is nothing in the record to suggest that Kriesel

would have been deterred from those lapses if the government had pos-

sessed his DNA.

15330 UNITED STATES v. KRIESEL

property crimes or other offenses committed without substan-

tial personal contact.”). But the totality-of-the-circumstances

test is not so standardless that the court may invent specula-

tive justifications when the government offers none of its

own. The majority’s suggestion that non-violent crimes have

victims is true as far as it goes, but it does not go far enough.

Kincade exhorted the closure brought to victims of violent

crimes, but that is only half of the analysis. It justified the

2000 DNA Act on the grounds that the statute actually con-

tributes “to the solution of past crimes.” 379 F.3d at 839.

Thus, it is not enough for the majority or the government to

simply argue that non-violent crimes have victims; rather,

there must be some basis to believe that DNA profiling actu-

ally aids those victims. The government placed nothing before

the court to speak to that aspect of the inquiry.

Because the government interests articulated in Kincade

and re-constituted here are not sufficiently weighty to over-

come Kriesel’s privacy interests, I would hold that the war-

rantless searches permitted by the 2004 DNA Act are

unreasonable, and that the Act fails to survive review under

a totality-of-the-circumstances test.

III. CONCLUSION

When the 2000 DNA Act narrowly survived Fourth

Amendment review in this court just three years ago, we were

told to take solace in the “limited nature of [the] holding.”

Kincade, 379 F.3d 835. Yet, by invoking the analysis from

Kincade, the majority approves, without flinching, a statute

that effects a far broader and far less justified erosion of the

Fourth Amendment, extending Kincade without acknowledg-

ing it does so. However well-intentioned it may be, I find cold

comfort in the majority’s assurance that its decision today is

“confined to the precise circumstances before us.” Maj. Op.

at 15314.

I do not question the efficacy of the government’s methods.

An ever-expanding and unerasable electronic index of DNA

UNITED STATES v. KRIESEL 15331

profiles, monitored by the government’s unblinking digital

eye, may no doubt prove to be an effective law enforcement

tool. But our compact with the government requires constitu-

tional means, not just effective ends. Once expediency infects

the Fourth Amendment analysis, as it has with the majority’s

blessing of the “significant” crime-solving purposes of DNA

profiling, there is no limiting principle beyond what the gov-

ernment says it needs. The line should be drawn far short of

where the majority puts it. I dissent.